United States v. Zievan Foster

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 15, 2024
• Docket: 23-3400
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0124n.06

Case No. 23-3400

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 15, 2024 ) KELLY L. STEPHENS, Clerk UNITED STATES OF AMERICA, ) Plaintiff - Appellee, ) ) v. ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ) ZIEVAN FOSTER, NORTHERN DISTRICT OF OHIO ) Defendant - Appellant. ) OPINION ) )

Before: GIBBONS, BUSH, and MURPHY, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. A jury convicted Zievan Foster of being a felon

in possession of a firearm and two counts of possession of a controlled substance with the intent

to distribute. Foster now appeals the drug convictions, arguing that there was insufficient evidence

to convict him on either count. Additionally, Foster challenges both procedural and substantive

aspects of his sentence. Specifically, Foster disputes the length of his sentence, the district court’s

failure to credit him with an acceptance of responsibility reduction, and the fact that his federal

sentence runs consecutive to a state parole violation stemming from the same conduct. For the

reasons stated below, we affirm.

I.

Early one morning, Parma, Ohio police officers Jeffrey Romano and Russell Lake were on

duty and stationed at a parking lot watching traffic. The pair noticed a silver Pontiac moving at a

high rate of speed being followed by another car. They recognized the tailing car, based on the No. 23-3400, United States v. Foster

body style, as an undercover law enforcement vehicle. The undercover vehicle spotted the

officers’ cruiser and used a signal spotlight to catch their attention. The Parma officers took this

as a call for assistance and began to follow the Pontiac as well. Both law enforcement vehicles

momentarily lost track of the Pontiac; but, when it reemerged, the Parma officers activated their

lights and siren to initiate a traffic stop. The Pontiac sped off and crashed into a concrete barrier

shortly afterwards. The officers assisted the driver and sole occupant, Zievan Foster, out of the

vehicle and called the paramedics to assist with his injuries. Officer Lake then searched Foster’s

vehicle.

During the search Lake found an assortment of drugs, drug paraphernalia, and a firearm.

In the center console, Lake recovered a digital scale and a bag containing suspected marijuana.

And on the floorboard, Lake spotted several different colored pills, a bag of white to gray powder,

and a loaded firearm. Lake also retrieved a ledger, possibly recording drug transactions, from the

vehicle. The powder and pills were later tested and weighed. The powder was identified as a 9.33

gram mixture containing fentanyl, and eight of the pills, totaling 2.69 grams, contained

methamphetamine.

The government later indicted Foster on four counts: (1) possession with intent to distribute

fentanyl and (2) methamphetamine under 21 U.S.C. § 841(a)(1), (3) using or carrying a firearm

during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A)(i), and (4) being

a felon in possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1). Foster proceeded

to trial, contesting the first three charges. And at the end of the proceeding, the jury found him

guilty on counts 1, 2, and 4 and not guilty on count 3.

The district court sentenced Foster to 125 months incarceration on counts 1 and 2 and 120

months on count 4. The sentence for each federal count was to run concurrently, but his federal

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sentence was to run consecutive to any sentence received for the state parole violation regarding

the same conduct.

Foster now appeals, challenging the sufficiency of the evidence to convict him on the two

distribution charges, the district court’s refusal to credit him with a two-level acceptance of

responsibility reduction, the decision to run his federal sentence consecutive to his parole violation

sentence, and the overall length of his federal sentence.

II.

A. Sufficiency of the Evidence

Foster first argues that his convictions for possessing fentanyl and methamphetamine with

the intent to distribute were not supported by substantial evidence; and, as a result, the district

court erred in denying his motion for judgment of acquittal. We disagree.

We review a district court’s denial of a motion for judgment of acquittal, challenging the

sufficiency of the evidence supporting a conviction, de novo. United States v. Howard, 947 F.3d

936, 947 (6th Cir. 2020). In doing so, we consider “whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

With that said, a defendant challenging the sufficiency of the evidence “bears a very heavy

burden,” United States v. Davis, 397 F.3d 340, 344 (6th Cir. 2005) (quoting United States v.

Spearman, 186 F.3d 743, 746 (6th Cir. 1999)), because “[w]e draw all available inferences and

resolve all issues of credibility in favor of the jury’s verdict, and it is not necessary for us to exclude

every reasonable hypothesis but guilt,” United States v. Avery, 128 F.3d 966, 971 (6th Cir. 1997).

To convict Foster for possession with the intent to distribute under 21 U.S.C. § 841(a)(1),

the government must prove that he: (1) knowingly or intentionally, (2) possessed a controlled

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substance, (3) with intent to distribute. See United States v. Benton, 957 F.3d 696, 701 (6th Cir.

2020). Foster does not deny possessing 9.33 grams of a mixture containing fentanyl and 2.69

grams of methamphetamine; he contests only the intent element of the crime. The record, however,

shows that the government provided sufficient evidence to prove Foster’s intent.

The government presented both general and drug-specific evidence to underscore Foster’s

intent to distribute. For example, the government played a recording of a conversation between

Foster and an ATF agent, Matthew Curley, in which, despite admitting to possessing the fentanyl

and methamphetamine found in his vehicle, Foster stated “I don’t do drugs.” DE 61, Trial Tr.,

PageID 966–67. Additionally, Officer Lake, who conducted the search of Foster’s vehicle,

testified that he recovered a digital scale from the vehicle’s center console and a “torn sheet of

paper with various names and numbers next to them,” which he implied Foster used as a ledger.

DE 60, Trial Tr., PageID 926. A reasonable fact finder could determine that Foster used a scale

to weigh drugs he sold and that the paper represented a sales record.

To add more context to the physical evidence, Curley testified about drug quantities and

narcotics tools. To that end, Curley noted that traffickers often carry a scale, so they can be

accurate in measuring quantities sold and can more easily divide large quantities of drugs. Drug

users, on the other hand, are more likely to possess small quantities of drugs, both because drugs

can be expensive and because purchasing too much may result in overconsumption. Additionally,

users may carry some drug tools, like a syringe or lighter, but are unlikely to carry a scale. Finally,

Curley highlighted that Foster possessed a large quantity of fentanyl. Curley stated that the average

dose of fentanyl is around one tenth of a gram, that a gram costs around $150, and that anything

over 3.5 grams of fentanyl would be considered a large amount. Foster possessed 9.33 grams of a

mixture containing fentanyl. Considering the information above, the government presented

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sufficient circumstantial evidence such that a reasonable fact finder could believe Foster intended

to distribute both fentanyl and methamphetamine.

B. Procedural and Substantive Reasonableness

We review a challenge to the procedural and substantive reasonableness of a sentence for

abuse of discretion. United States v. Robinson, 778 F.3d 515, 518 (6th Cir. 2015). We review the

district court’s findings of fact for clear error and accord “due deference to [its] application of the

guidelines to the facts.” Buford v. United States, 532 U.S. 59, 63 (2001) (quoting 18 U.S.C.

§ 3742(e)) (emphasis omitted).

In assessing procedural reasonableness, a district court abuses its discretion if it

significantly errs, like by “failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including

an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38,

51 (2007). As for substantive reasonableness, a district court abuses its discretion if, essentially,

a defendant’s sentence is too long. See United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018).

This occurs when a sentence is greater than necessary to achieve the sentencing goals set forth in

18 U.S.C. § 3553(a)(2), which may result from placing too much weight on some of the

enumerated sentencing factors and not enough on others. Id.

Foster makes a number of challenges to the procedural and substantive reasonableness of

his sentence, and we address each in turn. Initially, Foster argues that the district court erred in

denying him an offense level reduction for his acceptance of responsibility. But Foster’s claim

lacks merit for two reasons. First, as a factual matter, Foster did not, and still does not, accept

responsibility for the conduct underlying his possession with the intent to distribute convictions.

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After he was convicted at trial, and during the preparation of his presentence report, Foster stated,

in a written letter to his probation officer, that “I continue to maintain my innocence with respect

to the allegations . . . that I possessed the drugs with intent to distribute (convicted by jury verdict

in Counts 1 and 2).” DE 45, PSR, at PageID 509. Foster’s insistence is inconsistent with

acceptance of responsibility. Second, as a practical matter, the acceptance reduction generally

does not “apply to a defendant who puts the government to its burden of proof at trial by denying

the essential factual elements of guilt.” U.S.S.G. § 3E1.1 cmt. n.2; see also United States v.

Guerrero, 76 F.4th 519, 531–32 (6th Cir. 2023). Foster is thus not entitled to the two-level

reduction for acceptance of responsibility.

Next, Foster contends that his sentence within the appropriate Guidelines range was

substantively unreasonable. Yet again, we disagree. A sentence within the Guidelines range is

presumed substantively reasonable, Gall, 552 U.S. at 51; United States v. Christman, 607 F.3d

1110, 1118 (6th Cir. 2010), and Foster fails to rebut this presumption. He argues that his 125-

month sentence was unreasonably high because “the average length of imprisonment” for like-

defendants “was 101 months and the median length of imprisonment was 100 months.” CA6 R.

25, Foster Br., 31. Sentencing, however, is tailored to the individual, and a deviation from the

national mean is insufficient to overcome the presumption of reasonableness for a within-

Guidelines sentence. To that end, the district court acknowledged and contemplated Foster’s

mitigating § 3553(a) factors, but found his overwhelming criminal history to warrant a top of the

Guidelines sentence.

Finally, Foster argues that the district court erred in running his federal sentence

consecutively to any time he received for a state parole violation for the same conduct.

Specifically, Foster claims that the district court should have addressed whether the § 3553(a)

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factors supported running his sentences consecutively. Foster’s argument is again misplaced. The

district court has discretion as to whether a federal sentence should run consecutively or

concurrently to an anticipated state sentence. Setser v. United States, 566 U.S. 231, 236 (2012).

And when either the state or federal sentence stems from a case in which the defendant was on

probation, parole, or supervised release, as here, the Guidelines “recommend[] that the sentence

for the instance offense be imposed consecutively to the sentence imposed for the revocation.”

U.S.S.G. § 5G1.3, cmt. n.4(C). Likewise, in making this decision, the district court does not need

to rehash a previous discussion of the defendant’s § 3553(a) factors. United States v. Berry, 565

F.3d 332, 343 (6th Cir. 2009). As a result, because the district court had previously addressed

Foster’s § 3553(a) factors and sentenced him in accord with the recommendation of the Guidelines,

the district court did not err in running Foster’s federal sentence consecutively to his impending

state parole violation.1

III.

For the reasons discussed above, we affirm.

1 As to Foster’s acceptance of responsibility and his consecutive sentencing arguments, the government raises questions about the appropriate standard of review. Because we can resolve these questions under even the more stringent of the relevant standards, we need not to address the standard of review issue here. -7-